Monday round-up — part one

Posted Mon, April 12th, 2010 11:46 am by James Bickford

The news of Justice Stevens' pending retirement has dominated the Supreme Court beat since it was first announced on Friday morning. Erin Miller collected some of the early coverage here. Nina Totenberg reported on the retirement Friday, and discussed it on Saturday (here and here). Adam Liptak of the New York Times and Robert Barnes of the Washington Post expanded their coverage for the Saturday editions, while Warren Richey of the Christian Science Monitor added his.

Since the announcement, there has been an outpouring of reflections on the legacy that Justice Stevens will leave behind. The other Justices released statements praising their departing colleague, and a number of Stevens clerks recorded their memories of the Justice on the op-ed pages of the New York Times and the Washington Post (here and here). The Washington Post collected other memories of Justice Stevens' service here. The National Law Journal established a blog, Speaking of Stevens, to which clerks, litigants and professors have been adding their thoughts, and created a separate page "” The Stevens Legacy "” with reflections on the Justice's role in terrorism and criminal justice cases, as well as his commitment to access to the courts.

Major editorial boards have also weighed in. The New York Times called the Justice "an eloquent voice for civil liberties, equal rights and fairness" as well as "a strong voice for victims of discrimination, workers and criminal defendants," and it urged President Obama to choose a replacement that shared those qualities. The Washington Post recounted the Justice's remarkable biography and suggested that a "nominee with Justice Stevens’s keen intellect, integrity, strong work ethic and collegiality would serve the court and the country well." For the Los Angeles Times, Justice Stevens "epitomized an approach to judging that always serves the court well: dispassionate, deliberative, but also determined to adapt to changes in the life of the nation."

The Chicago Tribune called Justice Stevens a "more old-fashioned conservative" than recent Republican appointees, and noted that Solicitor General Elena Kagan, Judge Diane Wood of the Seventh Circuit, and Judge Merrick Garland of the D.C. Circuit, who are most often mentioned as potential nominees, all have connections to Chicago. The Wall Street Journal described the retirement as giving President Obama "a chance to lay the groundwork for a future liberal Supreme Court majority" and discussed the same three candidates to replace Justice Stevens. (For more coverage of the upcoming nomination, see the second part of this round-up.)

Many commentators reflected on the curiosity that a Republican appointee would have come to lead the Court's liberal wing. Abdon Pallasch of the Chicago Sun-Times noted Justice Stevens' oft-repeated claim that he didn't move left, but rather the Court moved right, while David Savage of the Los Angeles Times described that shifting dynamic on a series of major issues. Mark Sherman and Calvin Woodward of the Associated Press traced a similar narrative, but Justin Driver of the New Republic suggested that the notion of an unchanging Justice Stevens was a self-serving myth. Harold Meyerson of the Washington Post suggested that "Stevens's chief contribution has been to lead opposition to the galloping judicial overreach of the court's conservatives." Andrew Cohen of the Atlantic remembered the Justice as the last of the Rockefeller Republicans, and Bob Schieffer of CBS News reflected on the importance of Justice Stevens for the legacy of President Ford. Linda Greenhouse described the Justice as the last of an era "when a Supreme Court nominee didn't have to check every box": though he was nominated only two years after Roe v. Wade, at his confirmation hearing then-Judge Stevens faced no questions about the decision.

Others noted personal traits that had characterized the Justice's tenure. At Slate, Dahlia Lithwick and Sonja West suggested that his career had been marked by empathy, a controversial talking point during the nomination and confirmation process of Justice Sonia Sotomayor. For Charles Lane of the Washington Post, it was Justice Stevens' civility that stood out, and Tony Mauro at the National Law Journal similarly noted the Justice's "modest manner." Jess Bravin of The Wall Street Journal suggested that it was Stevens' "ability to pull together a majority for his side" that will be hardest to replace. Rodger Citron opined that the Stevens retirement marked "the loss of the Supreme Court’s pre-eminent common law ­lawyer." Lynn Sweet of the Chicago Sun-Times recalled the Justice's Chicago connections, as did William Mullen of the Chicago Tribune.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.